(영문) 대전지방법원 2017.06.01 2015가단37259

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(영문) 대전지방법원 2017.06.01 2015가단37259

근저당권말소

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1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On June 18, 2015, the Plaintiff filed a lawsuit for a loan claim with Daejeon District Court Decision 2014GaGa27743 against C, and rendered a judgment that “C shall pay to the Plaintiff 8,3950,000 won and interest thereon at the rate of 20% per annum from June 13, 2014 to the day of full payment,” and the above judgment became final and conclusive around that time.

B. On June 1, 2007, C entered into a mortgage contract with the Defendant. On the same day, C completed the registration of the Daejeon District Court as well as the registration of the establishment of a mortgage on each real estate listed in the attached list owned by C on June 1, 2007 (hereinafter “the establishment of a mortgage of this case”).

C. D is the father of C, and E is the husband of the defendant.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Eul evidence 1, the purport of the whole pleadings

2. The parties' assertion

A. Plaintiff 1) The registration of the establishment of a mortgage of this case is invalid because the Defendant and C did not have any secured debt but the establishment of a mortgage of this case was conducted in cooperation with the Defendant, and even if it is acknowledged that the Defendant’s husband E lent money to D, his father, as alleged by the Defendant, the registration of the establishment of a mortgage of this case is invalid due to the registration of the establishment of a mortgage of the third party as the mortgagee or the debtor, against the father of the right to collateral security.

B. Defendant 1) lent to D KRW 30 million on October 201, 200, KRW 30 million on March 20, 2002, KRW 30 million on March 27, 2006, and KRW 30 million on March 27, 2006, respectively, Defendant 1). The registration of creation of a neighboring mortgage was completed for the purpose of securing the above loan, and there was an agreement between the parties to make a third party as a mortgagee or debtor, and thus, the registration of establishment of a neighboring mortgage of this case does not go against the father nature.

3. Determination

A. A, as to the existence of a secured obligation, evidence No. 2, and evidence No. 3.

유사 판례

-대법원 1981. 9. 8. 선고 80다1468 판결

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